The Occupational Safety and Health Appeals Board (Board), acting
pursuant to authority vested in it by the California Labor Code, and having granted the
petition for reconsideration filed in the above-entitled proceeding by Sierra Ready Mix
(Employer), makes the following decision after reconsideration.

JURISDICTION

On April 14, 1995, a representative of the Division of Occupational
Safety and Health (Division) conducted an accident investigation at a place of employment
maintained by Employer at 5481 Davidson Road, El Dorado, California (the site). On June 7,
1995, the Division issued to Employer Citation No. 1, alleging a serious violation of
section 3314(a) [de-energizing equipment for cleaning] of the occupational safety and
health standards and orders found in Title 8, California Code of Regulations. The Division
proposed a $3,500 penalty for the alleged violation.

Employer filed a timely appeal contesting the existence and
classification of the alleged violation and the reasonableness of the abatement
requirements and proposed penalty.

After a hearing on October 30, 1996, an administrative law judge (ALJ)
of the Board denied the appeal in a written decision issued on January 2, 1997.

On January 28, 1997, Employer petitioned the Board for reconsideration
of the ALJs decision. On February 25, 1997, the Board granted Employers
petition and stayed the ALJs decision pending reconsideration.

ISSUES

1. Does the evidence establish a violation of
section 3314(a)?

2. Was the violation correctly classified as serious?

EVIDENCE

The Board has taken no new evidence and relies upon its independent
review of the record in making this decision.

Employer operated a ready-mix concrete plant at the site. An unusually
sticky type of sand had accumulated on a roller supporting an inclined sand and aggregate
conveyor belt. The supervisor, who operated the plant and directed the work of employees,
instructed an employee to scrape the sand off the roller with the blade of a shovel. The
employee stood on the floor and raised the shovel overhead to bring the blade into contact
with the roller. The supervisor energized the conveyor and, shortly thereafter, the shovel
blade became stuck in the pinch point between the roller and the underside of the conveyor
belt.

The supervisor de-energized the conveyor and the employee extricated
the shovel. At the supervisors direction, the employee backed his truck under the
roller and stood on the truck to get closer to the roller. He began trying to scrape the
roller with the shovel but found it awkward to use the shovel from that location. The
supervisor stated that he was to going to re-energize the conveyor and started up the
stairs to the control room. The employee testified that he responded "no" and
began trying to clean the roller with his hand.

The supervisor testified that he had advised the employee to keep his
hands away from the roller, that he did not hear the employee say "no," and,
that he did not know the employee had begun cleaning the roller with his hand. When the
supervisor reached the control room he re-energized the conveyor and the employees
hand and arm were pulled into the pinch point between the belt and roller, causing serious
injuries.

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Evidence Establishes a Violation of Section 3314(a).

Section 3314(a) reads, in pertinent part, as follows:

Machinery or equipment capable of movement shall be stopped and the
power source de-energized or disengaged, and if necessary, the moveable parts shall be
mechanically blocked or locked out to prevent inadvertent movement during cleaning,
servicing or adjusting operations unless the machinery or equipment must be capable of
movement during this period in order to perform the specific task. If so, the employer
shall minimize the hazard of movement by providing and requiring the use of extension
tools (e.g., extended swabs, brushes, scrapers) or other methods or means to protect
employees from injury due to such movement. Employees shall be made familiar with the safe
use and maintenance of such tools by thorough training.

At the time of the accident, the employee was performing a cleaning
operation, the conveyor was not de-energized and the employee was not using an extension
tool as protection against the hazard presented by the pinch point between the belt and
roller. These undisputed facts prove a violation of section 3314(a).

The ALJ found that the conveyor had to be energized and, thus,
"capable of movement" during the roller cleaning operation to enable the
employee to clean the entire circumference of the roller. That finding is supported by the
supervisors testimony that, otherwise, the portion of the roller in contact with the
underside of the belt would not get cleaned and would leave a bump of sand on the roller
that would cause the belt to bounce. Therefore, the Board accepts the finding as fact.

2. The Violation Was Correctly Classified as Serious.

To prove the violation was serious, the Division had to establish, by a
preponderance of the evidence, that it was substantially probable that the violation could
result in death or serious physical harm and that Employer knew of the violation or could
have known of the violation by exercising reasonable diligence. (Labor Code § 6432(a).)

The purpose of section 3314(a), as it applied to this case, was to
protect the employee from getting a hand or body part caught in moving parts of the
conveyor while cleaning the roller. The Divisions inspecting compliance officer
testified that, in his experience, accidental contact with moving parts of such machinery
resulted in death or serious physical harm "most of the time." His testimony was
unrefuted. Additionally, the employee involved in this accident sustained severe injuries
including broken bones in his arm and a dislocated shoulder, which required several days
of hospitalization for treatment. This evidence proved it was substantially probable that
the violation of section 3314(a) found to exist in this case could result in death or
serious physical harm.

The supervisor testified that he directed the employee to use a shovel
to scrape the roller and told him to keep his hands away from the roller when he made the
assignment. He also testified that he was "under the impression" that the
employee knew how to use a shovel to scrape sand off a roller without getting the shovel
caught in the pinch point.

Apparently, the employee did not have that knowledge. Presumably, if he
did, the shovel would not have been jammed in the pinch point a few minutes after he
started scraping. The supervisor criticized the employee for getting the shovel stuck and
told him to stand on a truck so he would be closer to the roller and have better control
of the shovel. The employee did what the supervisor directed, but found it awkward to use
the shovel from that position, and attempted to clean the roller with his hand.

The ALJ found that the shovel was an adequate extension tool while the
employee was standing on the floor where he could not reach the roller with his hand but
was inadequate when he stood on the truck and the roller and pinch point were within his
reach. The position an employee must assume to use a tool may be considered in assessing
the adequacy of the tool for the task assigned.

The injured employee had been working for Employer as a concrete mixer
and driver for approximately four years at the time of the accident. The supervisor
testified, without refutation, that shovels were commonly used to scrape rollers. No
evidence was presented to show that using a shovel was an ineffective means of removing
sand from a roller or had ever resulted in an injury to an employee. The purpose of having
the employee stand on the truck, which shortened the distance he had to reach to bring the
shovel blade in contact with the roller, was to allow him to shorten his grip on the
handle and have better control of the blade. The employee's general comment that he found
it awkward to use the shovel from the truck by itself does not prove that the shovel was,
in fact, a poor tool for scraping the roller from that location. It is equally plausible
that the shovel would have been safe for use from that position, if Employer had
"thoroughly trained" the employee to use the shovel as a scraper.

The supervisors assumption that the employee knew how to use the
shovel properly, his criticism of the employees misuse of the shovel, and his
direction to the employee to use the shovel from a position closer to the hazardous pinch
point, without more, does not support the contention that the employee was
"thoroughly trained" to use the shovel as an extension tool. Instead, this
evidence establishes that Employer, by exercising reasonable diligence, could have known
the employee was not thoroughly trained to use the extension tool provided another element
of the serious classification.

Here, though the roller cleaning proceeded without injury at the
beginning, a violation of section 3314(a) existed throughout, because the employee
performing the cleaning operation was not thoroughly trained to use the shovel as a
scraper and the supervisor could have of known of that violative condition by inquiring
before he made the assignment. Moreover, the supervisor knew the employee got the shovel
caught in the pinch point minutes after he started the roller cleaning operation and that
mishap put Employer reasonably on notice of a training deficiency.

Having found that the Division proved both elements of a serious
violation, the Board further finds that the violation was correctly classified as serious.
There is no contention that the proposed civil penalty was not properly calculated by the
Division in accordance with the Directors regulations. The Board therefore finds
that a civil penalty of $3,500 is appropriate.

DECISION AFTER RECONSIDERATION

Employers appeal is denied, and a civil penalty of $3,500 is
assessed.